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NATURE OF ADVOCATES RIGHT TO PRACTISE

A PROJECT REPORT SUBMITTED TO

UNIVERSITY FIVE YEAR LAW COLLEGE, JAIPUR

PROFESSIONAL ETHICS & PROFESSIONAL ACCOUNTING

Under Supervision of: -

SUBMITTED BY: -

Mr. C.P. Gupta

Shweta Chauhan

Faculty- Professional Ethics

Student of X Semester,

University Five Year Law College,

UFYLC, Jaipur

Jaipur

UNIVERSITY FIVE YEAR LAW COLLEGE,

UNIVERSITY OF RAJASTHAN
JAIPUR
MARCH 2014

Mr. C.P. Gupta

(Faculty- Professional Ethics)

University Five Year Law College,

University of Rajasthan,
Jaipur

Certificate

This is to certify that Shweta Chauhan is a student of X

Semester of University Five Year Law College, University of
Rajasthan, Jaipur. She has written the project report entitled Nature of
Advocates Right to Practise under my supervision and guidance.
It is further certified that the candidate has made an appreciable
attempt on the subject mentioned above.

Mr. C.P. Gupta

(Faculty- Professional Ethics & Professional Accounting)

Dated-16th March, 2014

Acknowledgment

I would like to express profound gratitude to our Director Dr. Manju Koolwal,
Joint Director Dr. M.C. Koolwal and my advisor, Mr. C.P. Gupta, for their invaluable
support, encouragement, supervision and useful suggestions throughout this research
work. Their moral support and continuous guidance enabled me to complete my work
successfully.
I am as ever, especially indebted to my parents, for their love and support
throughout my life. Moreover, my sincere thanks go to my friends, who shared their
love and experiences with me. Finally, I wish to express my appreciation to all of
them who helped me overcome my doubts in doing this project work.

Shweta Chauhan

II

TABLE OF CONTENTS

Certificate..I
Acknowledgment.II
1. Introduction...1-2
Research Methodology
Research Questions
2. Advocates Right to Practise.......3-7
3. Judicial Trend on Advocates Right to Practise...8-9
4. Conclusion.................................................................................................10
Table of Cases
Bibliography & Webliography

1. INTRODUCTION
The practice of the law is not a business open to all who wish to engage in it;
it is a personal right or privilege it is in the nature of a franchise from the State.
This is quite surprising that the lawyers who fight for rights of others have no
defined rights for their own. However, this is true. All rights of lawyers that have been
codified or have been in practice for years are structured in a way as to ensure that the
lawyers conduct their duties in a proper manner. It has been said and correctly so that
for the legal profession duties are privileges and privileges are duties.
This is also to say that unlike other professions there are a lot more restrictions
on the practice of law, which in turn disadvantage the professionals in the field. Even
the right to practice is restricted by High Court rules, Professional Conduct and last
but not the least the idea that law is a noble profession.
The rights of lawyers are more in nature of powers and privileges given to
them for the purpose of conducting their duties in a proper manner. In a nutshell, it
can be said that an advocate has the implied authority to admit or deny a document, to
press or withdraw an issue in the case, to examine a witness or call no witnesses, and
do such other acts as are required for the proper conduct of case. Many of these
powers have been derived from the English legal system and have continued over the
ages.
The most important of all rights of a lawyer is his/her right to practice.
However, there are certain prerequisites for allowing a lawyer to exercise his right to
practice. This is the only right of advocates that has been codified and placed in the
Advocates Act, 1961 with the duties and code of conduct of lawyers.

1.1

RESEARCH METHODOLOGY
The present research is a doctrinal research which is mainly based on the data

collected from the literature, books and previous researches based on the same topic.
Views of teachers and their help are also being proved fruitful in this research.

1.2

RESEARCH QUESTIONS
Whether lawyers have absolute right to practice?
Are there any fetters on lawyers right to practice?

2.

ADVOCATES RIGHT TO PRACTISE

The rights of lawyers are more in nature of powers and privileges given to

them for the purpose of conducting their duties in a proper manner. The most
important of all rights of a lawyer is his/her right to practice. However, there are
certain prerequisites for allowing a lawyer to exercise his right to practice. This is the
only right of advocates that has been codified and placed in the Advocates Act, 1961
with the duties and code of conduct of lawyers.
In fact the right to practice for lawyers is an exclusive right that has been
given to particular set of people, who are deemed to be qualified to represent others.
This is to say that unlike the ancient times, when even friends and family could
represent an accused on facts. However later with the demands of unification of bar
by legal profession, the Act incorporated a provision in Section 29 whereby there will
be only one recognized class of persons entitled to practice the profession of law i.e.
the advocates, Section 30 that lays down the right in clear words and Section 33 that
is worded negatively to exclude everyone other than an advocate from practicing.
Although, this provision is not absolute as pleaders, vakils and mukhtars, who either
elected not to get enrolled as advocates or were not eligible for getting enrolled as
advocate, have been specifically saved by Section 55 of the Act from being disbarred
from practicing.
However, an advocate does not include a person in whose favor a power of
attorney has been executed to take proceedings in court as he can not be placed in the
position of an advocate, who has been given a vakalatnama. As a rule, a person who
is not an advocate on roll of a high court can not represent accused but there are
situations where the courts have used their discretion to allow a power of attorney
holder to plead on behalf of the parties.
Section 30 of the Advocates Act grants the right to practice to all the
advocates, who are on state rolls, before all authorities that can take evidence
including Supreme Court. It is however to be noted here that the right to practice the
profession of law is a statutory right and not a fundamental right. It is also to be noted
that only advocated, who are enrolled as per this Section can practice, while others not
so entitled are punishable under Section 45 of the Act.

However, the right of a lawyer to practice is not an absolute right as there are
a number of fetters placed upon the same. Section 34 of the Act empowers high court
to make rules prescribing conditions subject to which an advocate will be permitted to
practice in the High Court and the courts below. Hence, an advocates right to practice
in all courts is subject to the rules made by High Court.
One thing to be noted in this regard is that Section 30 has not come into
operation as yet. Section 1(3) of the Act suggests that the provisions of the Act will
come into effect from the day notified by the Central Government and since no such
date has been notified in the Official Gazette, the Act has not come into full force.
This position was substantiated by the Supreme Court in the case of Altmeish Rein v.
Union of India1, wherein the Apex Court held that a person enrolled as an advocate is
not ipso facto entitled to a right of audience unless this section is first brought into
force. This also means that Section 30, in its present form, does not confer an absolute
right to practice but is subject to other provisions of the Act.
Section 29 of the advocates Act, 1961, makes it clear that advocates are the
only recognized class of persons who are entitled to practise law. According to
Section 29 subject to the provisions of the Advocates Act and rules made thereunder,
there shall, as from the appointed day, be only one class of persons entitled to practise
the profession of law, namely, advocates. This section, thus, provides for a unified bar
for the whole of India. In order to understand the true effect of this section, it should
be read along with the relevant provisions of Section 55 of the Advocates Act.
Section 55 saves the rights of certain existing legal practitioners, namely, vakils,
pleaders, attorneys in the High Courts at Bombay and Calcutta, mukhtars and revenue
agents. They can continue to practise the profession of law as such. Section 55, thus,
saves the existing vakils, pleaders, attorneys, mukhtars, and revenue agents.
According to Section 55 of the Advocates Act notwithstanding anything
contained in this Act
(a) every pleader or vakil practising as such immediately before the date on
which Chapter IV comes into force (hereinafter in this section referred to as the said
date) by virtue of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), the
1 AIR 1988 SC 1768.

Bombay Pleaders Act, 1920 (Bombay Act 17 of 1920), or any other law who does not
elect to be, or is not qualified to be, enrolled as an advocate under this Act;
(b) every mukhtar practising as such immediately before the said date by
virtue of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), or any other
law, who does not elect to be, or is not qualified to be, enrolled as an advocate under
this Act;
(c) every revenue agent practising as such immediately before the said date
by virtue of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), or any
other law;
shall, notwithstanding the repeal by this Act of the relevant provisions of the
Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (Bombay
Act 17 of 1920), or other law, continue to enjoy the same rights as respects practice in
any court or revenue office or before any authority or person and be subject to the
disciplinary jurisdiction of the same authority which he enjoyed or, as the case may
be, to which he was subject immediately before the said date and accordingly the
relevant provisions of the Acts or law aforesaid shall have effect in relation to such
persons as if they had not been repealed.
Section 30 of the Advocates Act provides that subject to the provisions of this
Act, every advocate whose name is entered in the State roll shall be entitled as of right
to practise throughout the territory to which this Act extends
(i)

in all Courts including the Supreme Court;

(ii)

before any Tribunal or person legally authorised to take evidence; and

(iii)

before any other authority or person before whom such advocate is by or under
any law for the time being in force entitled to practise.
Section 33 of the Advocates Act provides that except as otherwise provided
in this Act or in any other law for the time being in force, no person shall, on or after
the appointed day, be entitled to practise in any Court or before any authority or
person unless he is enrolled as an advocate under this Act.

However, Section 32 of the Advocates Act make it clear that notwithstanding

anything contained in this Chapter (Sections 29 to 34) any Court authority or person
may permit any person, not enrolled as an advocate under this Act to appear before it
or him in any particular case.
Section 34 of the Advocates Act empowers the High Court to make rules
laying down the conditions subject to which an advocate shall be permitted to practise
in the High Court and the Courts subordinate thereto.
The High Court shall make rules for fixing and regulating by taxation or
otherwise the fees payable as costs by any party in respect of the fees of his
adversarys advocate upon all proceedings in the High Court or in any Court
subordinate thereto.
Section 49(1) (ah) of the Advocates Act empowers the Bar Council of India
to make rules in relation to the conditions subject to which an advocate shall have the
right to practise and the circumstances under which a person shall be deemed to
practise as an advocate in a Court. In the exercise of the power the Bar Council Of
India has made certain rules. Chapter III of Part VI of the Rules of Bar Council Of
India contains several rules dealing with the conditions for right to practice. The
provisions of these rules may be summed up as follows:
a) It is the duty of every advocate to see that his name appears on the roll of State
Bar Council within which jurisdiction he ordinarily practises.
b) An advocate shall not enter into a partnership or any other arrangement for
sharing remuneration with any person or legal practitioner, who is not an
advocate.
c) Every advocate is required to keep informed the Bar Council on the roll of
which his name stands and of every changes of his address.
d) The Council or a State Council can call upon an advocate to furnish the name
of the State Council on the roll of which his name is entered and call for other
particulars.
e) An advocate who voluntarily suspends the practice for any reason whatsoever
is required to intimate by the registered post to the State Bar Council on the
rolls of which his name is entered, of such suspension together with his

certificate of enrolment in original. Whenever any such advocate who has

suspended his practice desires to resume his practice, he shall apply to the
Secretary of the State Bar Council for resumption of practice along with an
affidavit stating whether he has incurred any of the qualifications under
Section 24-A, Chapter III of the Advocates Act during the period of
suspension. The Enrolment Committee of the State Bar Council may order the
resumption of his practice and return the certificate to him with necessary
endorsement. If the Enrolment Committee is of the view that the advocate has
incurred any of the disqualifications, the Committee shall refer the matter
under provisions to Section 26(1) of the Advocates Act. On suspension and
resumption of practice the Secretary shall act in terms of Rule 24 of Part IX.
An advocate whose name has been removed by order of the Supreme Court or a High
Court or the Bar Council, as the case may be, shall not be entitled to practise the
profession of law either before the Courts and authorities mentioned under Section 30
of the Advocates Act or in chambers or otherwise. An advocate, who is under
suspension, shall be under disability during the period of suspension as an advocate
whose name has been removed from the roll.
By the rule it has been made clear that an officer after retirement or otherwise
ceasing to be in service, shall not practise for a period of two years in the area in
which he exercised jurisdiction for a period of 3 years before his retirement or
otherwise ceasing to be in service. However, nothing in this rule shall prevent any
such person from practising in any Court or Tribunal or authority of superior
jurisdiction to one in which he held office.
Rule 8 of the Chapter III of the Rules of Bar Council of India provides that no
advocate shall be entitled to practise if in the opinion of the Council, he is suffering
from such contagious disease as it makes the practise of law a hazard to the health of
others. The disqualification shall last for such period as the Council directs from time
to time.

3. JUDICIAL TREND ON ADVOCATES RIGHT TO PRACTISE

In Harish Uppal vs. Union of India 2, the Court has held that the advocates
right to appear and conduct cases in court is not absolute. It is subject to rule framed
by the Supreme Court under Article 145 or the High Court under Section 34 of the
Advocates Act. The Court can, thus, frame rules debarring advocates guilty of
contempt, unprofessional or unbecoming conduct from appearing before Courts. Such
rules will not be in conflict with disciplinary jurisdiction of the Bar Councils.
In Surender Raj Jaiswal vs. Smt. Vijaya Jaiswal 3, the AP High Court has held
that the right of practice is different from the right of appearance in a particular case.
The right of practice is a right to the advocate to practice the profession of law before
all Courts, Tribunals, authorities, etc. whereas right to appear in a particular case on
the permission granted by the Court under Section 32 of the Advocates Act is an
exception to the right of practice by the Advocates. It is clear from Section 32 that the
Court cannot permit a person to appear in general in all cases and that right can be
exercised by the advocates only.
In Jaymal Thakore vs. Charity Commissioner4, the Gujarat High Court has
held that section 30 of the Advocates Act confers right to practice law only on the
enrolled or registered advocates. However, Section 32 confers discretionary power on
the Court to permit appearance to any non advocate for a party. Section 32 restricts
the power of the Court to permit any non-advocate only to appear on behalf of the
party in any particular case.
In Harisanker Rastogi vs. Girdhari Sharma5, the Supreme Court has held that
a private person who is not an advocate, has no right to barge in the Court and claim
to argue for a party. He must get the prior permission of the Court for which the
motion must come from the party himself. It is open to the Court to grant or withhold
the permission in its discretion. Even after the grant of permission the Court can
withdraw it halfway if the representative proves himself reprehensible. The
2 2003 AIR SCW 43
3 AIR 2003 AP 317
4 AIR 2001 Guj 279
5 AIR 1978 SC 1019

antecedent, the relationship, the reasons for requisitioning the services of the private
person and a variety of the other circumstances must be gathered before grants or
refusal of permission.
In the case of Bar Council of India vs. High Court of Kerala 6, the Supreme
Court has made it clear that the advocates right to practise is not Fundamental Right.
Such right is conferred upon him under the provisions of Advocate Act (i.e. statutory
right) which necessarily would mean that the conditions laid down therein would be
applicable in relation thereto.
In Bar Council of India vs. High Court of Kerala, the Rule 11 framed by the
Kerala High Court was challenged. It prohibits the advocates from practising unless
he has purged himself of contempt. This rule, otherwise valid, is not hit by Article 14
of the Constitution for not having provided for a further opportunity of hearing to the
contemner advocate.
Within the Court, the right of audience of an advocate is to be regulated by the
Court itself. The Court can prevent an audience from continuing to appear in the
matter if it feels that it would be improper to allow him to appear in the said matter.7
In the case of P.C. Jose vs. Nandakumar8, the Court has said that in view of
Sections 23, 29 and 33 of the Advocates Act, in Court room, members of the Bar,
being officers of the Court, have certain privileges. Merely on the basis of equality
clause in the Constitution, a litigant conducting his case himself without the aid of
counsel cannot claim right to be seated in the Court. In the opinion of the Court it is
immaterial that there is no statutory provision conferring preferential rights on
advocates regarding seating accommodation in a court room. It is useful to keep in
mind that there is no statutory provision regarding the seat of a Judge in a Court hall
or, the seat of the Court Officer (as bench clerk) or seat for witnesses, etc. Thus, the
criteria is not whether there is any statutory provision or rule.

6 AIR 2004 SC 2227

7 Amarjit Singh Kalra vs. Smt. Pramod Gupta; AIR 2005 Del 41
8 AIR 1997 Ker 243.

4. CONCLUSION
Legal profession is one of the most regulated profession s and that lawyers do
not have absolute rights with respect to anything. The present rights of lawyers are
more in nature of paper rights than real rights. As has been already mentioned in the
project, the rights of lawyers are more in nature of duties as they are granted to the
lawyers so that they can carry out their duties in proper manner. However, this goes
against the very concept of granting rights in the first place as rights and duties are
complementary concepts and not overlapping concepts as happens in case of lawyers.
In exercising these rights, lawyers shall always conduct themselves in
accordance with the law and the recognized standards and ethics of the legal
profession. Effectively, the right of lawyers is more limited than the right to
profession guaranteed by the Constitution. No doubts that all the rights are
accompanied by reasonable restrictions, the rights of lawyers are limited by their
duties and the requirements of legal profession.
The proponents of the present scheme of rights of lawyers suggest that every
profession has a code of conduct and the persons practicing it are expected to abide
by it for maintaining the sanctity of the profession and conducting themselves in a
manner expected of their profession.

TABLE OF CASES
1. Altmeish Rein v. Union of India; AIR 1988 SC 1768.
2. Amarjit Singh Kalra vs. Smt. Pramod Gupta; AIR 2005 Del 41
3. Bar Council of India vs. High Court of Kerala; AIR 2004 SC 2227
4. Harisanker Rastogi vs. Girdhari Sharma; AIR 1978 SC 1019
5. Harish Uppal vs. Union of India; 2003 AIR SCW 43
6. Jaymal Thakore vs. Charity Commissioner; AIR 2001 Guj 279
7. P.C. Jose vs. Nandakumar; AIR 1997 Ker 243.
8. Surender Raj Jaiswal vs. Smt. Vijaya Jaiswal; AIR 2003 AP 317

BIBLIOGRAPHY
1.

The Advocates Act, 1961; Bare Act

2.

The Bar Councils Act, 1926; Bare Act

3.

Dr. Kailash Rai, Legal Ethics: Accountability for lawyers & Bench-Bar Relations; Central
Law Publications; 9th Edn.

WEBLIOGRAPHY
1. www.legalsutra.com
2. Google: Search Engine